NORFOLK MONUMENT CO., INC. v. WOODLAWN MEMORIAL GARDENS, INC., ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 1040.
Decided April 21, 1969.
Petitioner, a retailer of burial monuments and bronze grave markers, brought suit for damages and injunctive relief under 4 and 16 of the Clayton Act, alleging that respondents had violated 1 and 2 of the Sherman Act by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. After extensive pretrial discovery respondents' motion for summary judgment was granted, the District Court concluding that there was no material issue of fact and no evidence of conspiracy. The Court of Appeals affirmed. Held: The alleged conspiracy had not been conclusively disproved by pretrial discovery and there remained material issues of fact which could only be resolved by a jury after a plenary trial. "[S]ummary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles . . . ." Poller v. Columbia Broadcasting System, 368 U.S. 464, 473 .
Certiorari granted; 404 F.2d 1008, reversed.
Howard I. Legum and Louis B. Fine for petitioner.
Frederick S. Albrink for Woodlawn Memorial Gardens, Inc., William C. Worthington for Rosewood Memorial Park, Inc., et al., Jefferson B. Brown for Greenlawn Cemetery Park Corp., Bernard Glasser and Stuart D. Glasser for Roosevelt Memorial Park & Cemetery Corp., and William H. King for Jas. H. Matthews & Co. of Virginia et al., respondents.
The petitioner, a retailer of burial monuments and bronze grave markers, brought this action for damages and injunctive relief under 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. 15, 26, [394 U.S. 700, 701] alleging that the respondents had violated 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1, 2, by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. The respondents - Matthews, a manufacturer of such markers, and five operators of cemeteries (called "memorial parks") that sell the markers - were charged with having jointly adopted various restrictive devices to prevent, restrict, and discourage sales of markers by the petitioner for installation in the cemeteries. After extensive pretrial discovery, the District Court granted the respondents' motion for summary judgment, concluding that there was no material issue of fact and no evidence of conspiracy. 290 F. Supp. 1. The Court of Appeals affirmed. 404 F.2d 1008.
We cannot agree that on the record before the District Court a jury could not have found that the respondents had conspired to exclude the petitioner from and monopolize the market for bronze grave markers. As Circuit Judge Craven pointed out in his dissenting opinion, the record disclosed the following conduct on the part of the respondents:
Nor do the other findings of the District Court necessarily dispel the inferences which the jury would be asked by the petitioner to draw. The District Court found, for example, that there was "a wide divergence of prices" charged for installation "which would completely negative any systematic scheming or conscious parallelism." 290 F. Supp., at 3. The petitioner's complaint, however, was not that the respondent cemeteries were charging uniform fees but that they were charging deliberately "excessive and unreasonable" fees for the purpose of injuring the petitioner. The fact that the District Court appeared to consider dispositive of the conspiracy allegations was that the petitioner's principal [394 U.S. 700, 704] officer "admitted that he has no letters, agreements, correspondence, or any other testimonials to a conspiracy among the several defendants . . . ." 290 F. Supp., at 3. But it is settled that "[n]o formal agreement is necessary to constitute an unlawful conspiracy," American Tobacco Co. v. United States, 328 U.S. 781, 809 , and that "business behavior is admissible circumstantial evidence from which the fact finder may infer agreement." Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540 .
We express no opinion, of course, on the strength or weakness of the petitioner's case, but hold only that the alleged conspiracy had not been conclusively disproved by pretrial discovery and that there remained material issues of fact which could only be resolved by the jury after a plenary trial. As we have cautioned before, "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot." Poller v. Columbia Broadcasting System, 368 U.S. 464, 473 .
The writ of certiorari is granted. The judgment is reversed, and the case is remanded for further proceedings in the District Court consistent with this opinion.
[ Footnote * ] Judge Craven noted that the reason for the disclaimer is that "Matthews is under an injunction prohibiting it from making any suggestions to memorial parks as to the quality of markers installed in the parks." 404 F.2d, at 1013, n. 6. The injunction was entered in one of the three consent decrees which have settled prior antitrust actions against Matthews. See 404 F.2d, at 1014. [394 U.S. 700, 705]